This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-267

 

In re the Matter of:
Stephen Jonathon Firestone, petitioner,
Respondent,

vs.

Mary Lynn Berger, a/k/a Mary Lynn Firestone,
Appellant.

 

Filed January 31, 2006

Affirmed in part, reversed in part, and remanded; motion granted

Peterson, Judge

 

Ramsey County District Court

File No. F3981545

D. Graham C. Clark, Jr., Mark W. Peery, Clark & Peery, P.A., 614 Portland Avenue, Suite 110, St. Paul, MN  55102 (for respondent)

 

John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant-mother Mary Berger argues that (a) the district court should have removed a parenting-time expeditor; (b) Minn. Stat. § 518.1751 (2004) is unconstitutional; (c) the district court judge should have removed himself from the case; (d) mother should be given access to respondent-father Steven Firestone’s health records; and (e) part of the appendix to father’s brief should be stricken.  Father argues that the appeal must be dismissed.  The appeal is properly before this court, we grant the motion to strike, and affirm in part, reverse in part, and remand.

FACTS

            The judgment that dissolved the parties’ marriage awarded mother physical custody of the parties’ child and awarded father parenting time.  When mother later moved for appointment of a parenting-time expeditor under Minn. Stat. § 518.1751 (2002), the district court appointed a “parenting consultant.”  The district court later adopted the parenting consultant’s recommendations.  Because of disputes with the parenting consultant, mother sought relief from the district court.  The district court issued four orders, which (a) denied mother’s motion to remove the parenting consultant; (b) rejected mother’s challenge to the constitutionality of the parenting-time-expeditor statute, Minn. Stat. § 518.1751; (c) refused to remove the district court judge from the case; and (d) denied mother’s request for access to certain health records of father. 

 

 

D E C I S I O N

I.

            We reject father’s argument that this appeal is taken from nonappealable orders.  Because mother’s motion initiating these proceedings sought, among other things, access to father’s health records and to alter parenting time, the resulting order, if final, would have been appealable.  See Minn. R. Civ. App. P. 103.03 (h) (stating orders granting or denying visitation modification are appealable); Weinzierl v. Lien, 296 Minn. 539, 540, 209 N.W.2d 424, 424 (1973) (stating generally, only final decisions are appealable).  The district court’s first order was not final because it addressed only mother’s claims for access to father’s health records.  It took four orders to finally resolve mother’s requests for relief, including her motion to modify parenting time, and it is those orders that mother has properly appealed.

II.

            The appendix to father’s brief contains a June 1, 2005 letter from mother’s attorney to father’s attorney.  Mother moves to strike the letter and any reference to it from father’s brief and appendix.  “The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01.  Because this appeal was filed on February 10, 2005, the June 1 letter did not exist when the appeal was filed.  Therefore, the letter cannot be part of the record on appeal, and we grant mother’s motion.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001).

 

III.

            Mother challenges the district court judge’s refusal to remove himself, arguing that the judge’s meeting with the parenting consultant created an appearance of impropriety requiring removal.  Whether to grant a removal request is discretionary with the district court, and its decision will not be reversed absent an abuse of discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug 20, 1986).  Under Minn. R. Civ. P. 63.03, a judge who has presided at a motion or other proceeding need not be removed absent a showing of prejudice on the part of the judge.  Mother has not shown any prejudice on the part of the judge or that the district court abused its discretion when it denied mother’s removal request.

IV.

            Based on mother’s assumption that the district court granted mother’s motion to appoint a parenting-time expeditor under Minn. Stat. § 518.1751, mother challenges the constitutionality of that statute.  But because comparing the district court’s October 20, 2003 order appointing the parenting consultant with Minn. Stat. § 518.1751 shows that the parenting consultant appointed by the district court was not a parenting-time expeditor under the statute, we do not address mother’s constitutional arguments.

            Except when describing mother’s motion, the order appointing the parenting consultant does not use the word “expeditor,” does not state that it is granting mother’s motion to appoint a parenting-time expeditor, and appoints a parenting consultant, rather than a parenting-time expeditor.  This is more than a matter of applying a different label to the person appointed by the district court because some of the powers conferred on the parenting consultant by the order are inconsistent with Minn. Stat. § 518.1751, subds. 1a, 1b(c), 2, 2a, 3(c), 4a(a), and 4a(b).

For example, under Minn. Stat. § 518.1751, subd. 1a, a party may not be required to refer a parenting-time dispute to a parenting-time expeditor if one of the parties claims to be the victim of domestic abuse by the other party unless “the court is satisfied that the parties have been advised by counsel and have agreed to use the parenting time expeditor process and the process does not involve face-to-face meetings of the parties.”  (Emphasis added.)  Mother claims to be a victim of father’s domestic abuse, which means that a dispute may not be referred to a parenting-time expeditor if the expeditor process involves face-to-face meetings of the parties.  But the order appointing the parenting consultant grants the consultant authority to “consult with . . . each parent, either individually or jointly, as the parenting consultant deems appropriate.” 

            Also, Minn. Stat. § 518.1751, subd. 1b(c), states, “[a] ‘parenting time expeditor’ is a neutral person authorized to use a mediation-arbitration process to resolve parenting time disputes.”  The order appointing the parenting consultant states that the consultant “may decide to try to mediate a resolution with the parties” and describes a mediation process.  Id.  But the order also states that “[n]one of the law and rules applicable to mediation sessions as contemplated by said law and rules shall be applicable to any part of the process as defined herein, because this process is not intended to be mediation within the definition of said law and rules.”

            And as a final example of inconsistencies between the order and the parenting-time-expeditor statute, Minn. Stat. § 518.1751, subd. 4a(a), states that “[s]tatements made and documents produced as part of the parenting time expeditor process which are not otherwise discoverable are not subject to discovery or other disclosure and are not admissible into evidence for any purpose at trial or in any other proceeding, including impeachment.”  The order states:

There is no privilege of confidentiality accorded to the Parenting Consultant by law.  All communications with the parties and others with whom the Parenting Consultant has conferred or discussed the case are subject to disclosure.  Statements made to the Parenting Consultant by the parties themselves or by their attorneys regarding matter that would otherwise enjoy the privilege of confidentiality may, through such disclosure, lose said privilege.

 

            It is not necessary to specifically address every inconsistency between the order and the parenting-time-expeditor statute.  The examples we have addressed are sufficient to demonstrate that the district court did not appoint a parenting-time expeditor under the statute. 

The parenting-time-expeditor statute “does not preclude the parties from voluntarily agreeing to submit their parenting time dispute to a neutral third party or from otherwise resolving parenting time disputes on a voluntary basis.”  Minn. Stat. § 518.1751, subd. 4.  The record contains a copy of a document signed by mother, titled “The Parenting Consultation Process,” that indicates that mother agreed to participate in the process described in the document.  But because there is not a similar document signed by father, it is not clear whether the parenting consultant was appointed by agreement of the parties.[1]  We therefore reverse the denial of mother’s motion to remove the consultant, and we remand for the district court to address whether the parenting consultant was appointed by agreement and, if not, to specifically identify the authority for appointing the parenting consultant.[2]  Because appointment of the consultant requires either the parties’ agreement to the appointment or authority for the appointment, if there is no agreement or authority, the consultant must be removed.

V.

            Mother also challenges the district court’s refusal to remove the parenting consultant.  The order appointing the consultant states that the consultant will serve until she is no longer willing or able to serve or until the later of the child reaching age 18 or graduating from high school.  The order does not identify other reasons for removal.  Thus, it is not clear whether the consultant can be removed under circumstances other than those listed in the order, and if the consultant can be removed, what circumstances permit or require removal.  For this reason, on remand, if the district court does not remove the consultant as discussed in Issue IV above, the district court shall address whether the only reasons for removal are those listed in the order and, if they are not, what other bases for removal exist and whether any of those bases have been satisfied.

VI.

            The district court denied mother access to father’s health records.  A district court has “wide discretion” in discovery matters and, absent an abuse of that discretion, its decision will not be altered on appeal.  Shetka v. Kueppers, Kueppers, Von Feldt and Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Mother did not identify any prejudice resulting from a lack of access to father’s health records, and none is obvious: (a) father is receiving extensive care and supervision for his condition; (b) after reviewing the existing records, the district court found nothing “relevant” in them; (c) by agreement, test results showing a relapse by father will be provided to mother; and (d) this is an acrimonious matter in which authorities involved in father’s care are concerned about possible “misuse[]” of father’s “sensitive” information.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating to prevail on appeal party must show error and resulting prejudice); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored).  Mother has not shown that the district court abused its discretion by denying her access to father’s health records, and we affirm the district court’s discovery ruling. 

            Affirmed in part, reversed in part, and remanded; motion granted.