This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Matter of:

R.G.W., minor child, Date of Birth: January 30, 1997,

and the Petition of Shannon E. Wobschall, et al.,


Dr. Colleen A. Israelson, et al.,


for the adoption of the minor child.

Filed December 22, 1998


Peterson, Judge

Freeborn County District Court

File No. F19750203

Wright S. Walling, Nathalie S. Rabuse, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellants)

J. Scott Braden, W. Bradley Frago, 417 Second Avenue Northwest, P.O. Box 861, Faribault, MN 55021 (for respondents)

Susan D. Dredge, P.O. Box 224, Newport, MN 55055 (guardian ad litem)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.



Appellants Colleen and Ronald Israelson challenge the trial court's order and judgment denying their adoption petition and granting the adoption petition of respondents Shannon and Stacy Wobschall. The Israelsons also challenge the trial court's pretrial order denying their request for a court-ordered custody evaluation. We affirm.


R.G.W. was born January 30, 1997. Her parents died shortly after her birth. Neither parent left a will or other clear statement indicating who was to care for R.G.W. in the event of their deaths.

The Israelsons (R.G.W.'s maternal aunt and uncle) and the Wobschalls (R.G.W.'s paternal aunt and uncle) each petitioned the trial court to adopt R.G.W. Both the Israelsons and the Wobschalls completed adoption home studies, and both stipulated to the appointment of Susan Dredge as the guardian ad litem for R.G.W.

A few weeks before trial, the Israelsons petitioned the trial court to order the Wobschalls to cooperate with the Israelsons' expert in a custody evaluation, or alternatively, to order a custody evaluation. The trial court denied the Israelsons' petition, noting that it was important to resolve the adoption of R.G.W. as quickly as possible and a "full-blown" custody study would require the adoption trial to be rescheduled.

Following a bench trial, the court denied the Israelsons' adoption petition and granted the Wobschalls' petition. The Israelsons moved for a stay of the trial court's order and for amended findings, or alternatively, for a new trial. Two days before the scheduled hearing on the posttrial motions, the Israelsons filed an appeal to this court. The trial court denied the Israelsons' motion for a stay and concluded that it did not have jurisdiction to consider the merits of the Israelsons' alternative motions for amended findings or a new trial.



The Israelsons argue that the trial court erred in denying their pretrial motion to order the Wobschalls to participate in a custody evaluation conducted by the Israelsons' expert, or, alternatively, to order a separate custody evaluation. The Wobschalls contend that this issue is not properly before this court because the Israelsons filed their notice of appeal before the trial court's posttrial motion hearing, thereby divesting the trial court of jurisdiction to consider the motion.

This court treats adoption proceedings the same as other civil matters. See Minn. Stat. § 259.63 (1996) (order, judgment, or decree pursuant to Minn. Stat. §§ 259.21 to 259.63 may be appealed as in other civil cases).

To preserve issues for appeal in a civil matter, the supreme court has required a motion for a new trial, but not a ruling on such a motion. See Tyroll v. Private Label Chem., Inc., 505 N.W.2d 54, 56 (Minn. 1993) ("matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error") (quoting Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)) (emphasis added); see also Sauter, 389 N.W.2d at 202 ("in order to preserve for appellate review issues arising during the course of trial counsel * * * must move the trial court for a new trial pursuant to Minn. R. Civ. P. 59.01") (emphasis added). As explained in Sauter,

the motion for a new trial provides both trial court and counsel with a unique opportunity to eliminate the need for appellate review or to more fully develop critical aspects of the record in the event appellate review is sought. * * * The trial court is given time for reflection and the opportunity to consider the context in which the alleged error occurred and the effect it might have had upon the outcome of the litigation. In short, it is given the opportunity to correct its own errors without subjecting the parties and the appellate courts to the time, expense and inconvenience involved in an appeal.

389 N.W.2d at 201-02 (emphasis added). Here, the Israelsons appealed from a final judgment after moving for a new trial. Thus, although it would have been preferable to await a ruling on the motion, the issues raised in the new-trial motion, as well as the order denying the Israelsons' pretrial motion, may be reviewed in this appeal. Cf. Hackett v. State, Dep't of Natural Resources , 502 N.W.2d 425, 427 (Minn. App. 1993) ("[b]ecause Sauter requires a party to make a motion for new trial, but does not require an appeal from an order denying such a motion, timely appeal from the judgment on the merits will present all procedural errors preserved in the motion for a new trial, as well as pretrial and posttrial rulings reviewable only on appeal from the judgment").


The decision to order a custody evaluation rests within the discretion of the trial court. Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

In a January 23, 1998, order, the trial court denied the Israelsons' pretrial motion for an order requiring the Wobschalls to submit to a custody evaluation by the Israelsons' expert, or, alternatively, for a court-ordered custody study. In the memorandum accompanying its order, the trial court noted that the adoption proceeding had been pending since April 1997, that it was very important that the matter be resolved as quickly as possible, and that it was almost inevitable that ordering a custody study at that point would require that the February 17 trial date be rescheduled for many months.

Although the Israelsons argue on appeal that their expert was prepared to complete the custody evaluation before the scheduled trial date, the trial court ruled on the motion just 25 days before the trial date. Given this short period before the trial date, the trial court could not be certain that completing the custody evaluation would not require that the trial be rescheduled for a later date.

Furthermore, the parties had stipulated to the appointment of Susan Dredge as guardian ad litem, and the trial court had ordered Dredge to submit a written report with a final placement recommendation. After meeting with the parties and interviewing collateral contacts, Dredge issued her report on October 15, 1997. The parties had also stipulated that they would exchange copies of their respective adoption home study reports when the reports were received from their respective adoption placement agencies. All of these reports were available to the trial court when it denied the motion for a custody evaluation. Although it was possible that a custody evaluation prepared by the Israelsons' expert would have provided additional information, it was not an abuse of discretion for the trial court to deny the pretrial motion where the possibility of receiving additional information had to be weighed against the probability that obtaining the information would delay the trial.


The best interests of the child must guide interpretation of the adoption statutes. In re Petition to Adopt S.T., 512 N.W.2d 894, 898 (Minn. 1994).

1. The Israelsons contend that because the factors set forth in Minn. Stat. § 518.17, subd. 1(a) (Supp. 1997), do not apply to a contested adoption proceeding, the trial court erred by considering these factors when determining the best interests of R.G.W. We disagree.

Minn. Stat. § 259.57, subd. 2(b) (Supp. 1997) provides that "among the factors the court shall consider in determining the needs of the child" in an adoption proceeding are those specified under Minn. Stat. § 260.181, subd. 3(b) (Supp. 1997). (Emphasis added.) Under the plain language of the statute, the court in an adoption proceeding may consider factors in addition to the factors specified under Minn. Stat. § 260.181, subd. 3(b). Although the Israelsons are correct that Minn. Stat. § 518.17, subd. 1(a), does not explicitly apply to adoption proceedings, the competing adoption petitions created a situation similar to a custody determination. If the trial court granted either petition, the successful petitioner would have custody of R.G.W. Therefore, the trial court's decision about the competing petitions included a custody determination.

In determining a child's best interests in an adoption proceeding, a trial court has broad discretion to consider, or not consider, factors that it believes influence the best interests of the child. See Jordet v. Wilkinson, 248 Minn. 433, 443, 80 N.W.2d 642, 648-49 (1957) (trial court has broad discretion to admit or exclude evidence when reviewing adoption decree). The trial court did not abuse its broad discretion by considering the "best interests" factors in Minn. Stat. 518.17, subd. 1(a). The factors were relevant to the trial court's determination of which set of potential parents was better suited to adopt R.G.W.

2. The Israelsons contend that in determining the best interests of R.G.W., the trial court erred by failing to consider the "protective factors" testified to by their expert, Dr. Susan Phipps-Yonas. These protective factors are: (1) permanence of family unit; (2) work ethic and history; (3) facilitating adjustment to home, school and community; (4) financial security; (5) educational achievement; (6) religion; (7) nuclear family; and (8) oral history.

The Israelsons contend that these factors are relevant to a determination of R.G.W.'s best interests, and, therefore, because Minn. Stat. §§ 257.025 and 518.17, subd. 1(a), indicate that a court is to consider all relevant factors when determining the best interests of a child, the trial court erred by failing to consider these factors. We disagree.

The record demonstrates that the trial court did consider the protective factors testified to by Dr. Phipps-Yonas but found that those factors were not appropriate criteria upon which to base its custody determination. Mindy Mitnick, a licensed psychologist, testified that the protective factors would be relevant only if one set of potential parents had a significant deficit regarding a particular factor. Here, there were differences between the two sets of parents with respect to the protective factors, but neither set of parents had any significant deficit. Furthermore, the trial court stated that it did not consider Phipps-Yonas to be a neutral evaluator, but did consider Susan Dredge, the guardian ad litem, to be a neutral evaluator. See City of New Prague v. Hendricks, 286 N.W.2d 696, 702 (Minn. 1979) (it is within the court's discretion as trier of fact to resolve conflicts in expert testimony and to determine the comparative weight to be given to respective opinions).

3. The Israelsons contend that the trial court's findings that some of the factors in Minn. Stat. §§ 260.181, subd. 3(b), and 518.17, subd. 1(a), were neutral or inapplicable with regard to determining R.G.W,'s best interests are not supported by the evidence.

a. Primary Caretaker

The trial court found that R.G.W. has lived with her maternal grandmother since February 28, 1997, and that her maternal grandmother is her primary caretaker. The Israelsons contend that because their proposed transition plan included having R.G.W.'s primary caretaker reside with them for a period of time to ease the transition, their transition plan was clearly superior, and this factor should not have been found to be neutral. We disagree. It is undisputed that R.G.W. has not lived with either set of potential parents. Although the court found that the primary caretaker has a close, emotional relationship with the Israelsons, the court also found that the primary caretaker's residence is only 10 to 20 miles away from the Wobschalls' residence but is 90 to 110 miles away from the Israelsons' residence. The close relationship with the Israelsons may be beneficial to R.G.W. during the transition period, but the shorter distance to the Wobschalls' residence may be beneficial later. The trial court's finding that neither the Israelsons nor the Wobschalls has more of the characteristics of a primary caretaker than the other is supported by the evidence.

b. Interaction and Interrelationship

The Israelsons contend that because their expert opined that they would provide R.G.W. a more natural family than the Wobschalls, the trial court erred when it found this factor to be neutral. We disagree. The trial court found that while the two families are different in many respects, both families would do a good job of raising R.G.W. The trial court also found that each family has either one or two children and both families are doing a good job with the children. The expert's opinion that one family is a more natural family than the other does not demonstrate that the trial court erred in finding this factor neutral.

c. Permanence of Family Unit

The Israelsons contend that because they are both of the same religion and they have been married longer, employed longer, are better educated, and have greater financial stability than the Wobschalls, the trial court erred when it found this criteria to be neutral. The Israelsons contend that the court erred because it was looking for signs of instability rather than determining which family was more stable. The trial court found that both homes

appear to be stable and both of the proposed adoptive parents have longstanding, stable marriages and neither of them are anticipating moves in the foreseeable future. There is really nothing that would indicate instability in the future.

The absence of any indication of instability in either family is a sufficient basis for the trial court to conclude that this factor is neutral.

d. The Child's Cultural Background

The Israelsons contend that because their expert opined that their focus on the nuclear family, as opposed to the Wobschalls' focus on the extended family, would serve as a protective factor for R.G.W., the trial court erred when it concluded that "[t]here is no basis to have a preference of one lifestyle over the other." We disagree. Although the expert's uncontradicted opinion may have provided a basis for preferring one lifestyle over the other, the trial court was not required to accept the opinion. See Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 670 (Minn. 1983) (expert opinion not conclusive even in absence of adverse expert).

The trial court made a difficult choice between two couples, having found both would be suitable adoptive parents of R.G.W. We conclude that the evidence in the record is sufficient to sustain the trial court's decision to grant the Wobschalls' adoption petition. The trial court considered the factors listed in Minn. Stat. §§ 518.17, subd. 1(a), and 260.181, subd. 3(b), as well as the recommendations of the guardian ad litem. The record supports the trial court's finding that the Wobschalls would tend to raise R.G.W. in a style and manner more similar to the way R.G.W. would have been raised had her parents survived, as a Catholic in rural Minnesota having extensive contact with members of her father's extended family. While this finding did not compel the trial court to grant the Wobschalls' petition, it sustains the court's decision.