This opinion will be unpublished and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

A05-1303

 

Michael C. Vincent, petitioner,

Respondent,

 

vs.

 

Laura M. Beck,

Appellant.

 

Filed February 14, 2006

Affirmed

Shumaker, Judge

 

Wright County District Court

File No. F7-05-1023

 

 

Michael C. Vincent, 645 U.S. Highway 12 S.E., Montrose, MN 55363 (pro se respondent)

 

Laura M. Beck, 3947 South Valley View Drive, #207, Eagan, MN 55122 (pro se appellant)

 

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant contends that the district court abused its discretion by denying her motion for custody modification and determining that the record does not support findings of emotional or physical endangerment or deprivation of her parental rights.  Respondent seeks dismissal, arguing that appellant waived all her arguments on appeal.  Because we find that the record does not support appellant’s allegations of emotional and physical endangerment or deprivation of parental rights, we affirm.

FACTS

Appellant mother and respondent father are the parents of a child born on July 10, 1991.  In 1994, the district court awarded respondent “temporary sole legal and permanent physical custody” of the child.  Years of custody litigation followed the determination. 

In March 2005, appellant moved to modify custody.  In transferring venue to where the child resides, the court commented that it did so with “reluctance” because the appellant had “not raised any new allegations that the child is currently endangered” and that the incidents relating to appellant’s allegations “occurred 10 years ago.”  In its order of June 21, 2005, the district court denied appellant’s motion to modify custody. 

In August 2005, this court dismissed the appeal based on appellant’s “failure to cite to the record in her brief,” but allowed for reinstatement.  Appellant filed a timely motion to reinstate the appeal.

This appeal arises from the court’s determination that a modification was not necessary to serve the best interests of the child because the appellant failed to show (a) that the child’s environment with the respondent endangers or impairs his physical or emotional development, or (b) that there was an unwarranted denial or interference with the parenting-time schedule.   

 

D E C I S I O N

            Appellant raises two issues on appeal.  First, she contends that the child’s present environment endangers his emotional and physical health.  Secondly, she alleges that respondent is depriving her of her parental rights.

In reviewing a custody determination, this court must decide whether the district court abused its discretion by improperly applying the law or making findings unsupported by the evidence.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Unless the district court’s findings are clearly erroneous, this court will not reverse.    Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  An appellate court gives appropriate deference to the district court, viewing the record in the light most favorable to its findings.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). 

1.         Custody Modification

The relevant part of the child-modification statute states that the district court may modify a previous custody order only if it finds that modification is necessary because of a change in circumstances and to serve the best interests of the child.  Minn. Stat. § 518.18(d) (2004).  The court must also find that the child’s present environment endangers his emotional or physical health or impairs his emotional development and that “the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”  Id. at (d)(iv).  In determining whether a child’s present environment endangers the child, the court must look to the particular facts of each case.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  A finding of endangerment must be supported by a showing of “a significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  “Present environment” refers to the last “judicially approved environment.”  Bjerke v. Wilcox, 401 N.W.2d 97, 100 (Minn. App. 1987).  Although the “mandate to examine the ‘child’s present environment’ requires on its face that there be a determination of the child’s environment at the time of the modification and not only the circumstances in previous years,” this court has stated that the care parents demonstrated in the past may be an indication of what can be expected from them in the present.  Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997).

            Although appellant’s affidavit in support of her custody-modification motion states that documents in the record support both modification standards, she fails to identify which documents she relies upon.  The record is replete with documentation that reflects 11 years of custody litigation.  But no court has found that the child’s environment endangered his emotional or physical health, and none of the documents show that there is any present endangerment to the child.  Appellant also points to various newspaper and magazine articles which discuss child-custody modification and the general effects of growth hormones in support of her contention that the child has suffered non-emergency medical neglect.  However, appellant has provided no evidentiary support and she alleges no facts whatsoever to show the endangerment she claims to exist in the child’s environment.  Thus, the district court did not err in its conclusion that appellant failed to show child endangerment.

2.         Deprivation of Custodial or Parental Rights

The district court ruled that appellant made no showing of an unwarranted interference with her parenting-time schedule.  In support of her allegation that respondent has interfered with or denied her right to visit the parties’ child, appellant quotes a criminal statute and cites cases involving false accusations of child molestation by one parent toward the other, and cases in which one parent denigrated the other in various ways.  She then merely asserts that respondent has denied and interfered with her visitation of the child; has made false reports of child abuse and false police reports; and that the guardian ad litem and the family court have knowledge of these matters.

Beyond her assertions, appellant has cited no record evidence of interference with her parenting-time schedule.  An appellate court must base its decisions on “evidence actually presented to the trial court and shown by the record on appeal.”  Western World Ins. Co. v. Anothen, Inc., 391 N.W.2d 70, 73 (Minn. App. 1986).  Therefore, relief cannot be granted upon mere argumentative assertions unsupported by any evidence in the record.  State v. Gilles, 279 Minn. 363, 365, 157 N.W.2d 64, 66 (1968); see also State v. Williams, 279 Minn. 152, 153, 155 N.W.2d 739, 740 (1968).  The district court did not abuse its discretion in determining that appellant failed to show any deprivation of her parental rights.

3.         Waiver of Arguments on Appeal

Respondent and appellant are both pro se litigants.  Respondent seeks dismissal of the appeal, contending that appellant waived all her arguments on appeal because her brief (a) fails to include an appendix, (b) contains matters outside the record, (c) does not use appropriate headings, (d) fails to include a statement of the case and facts, (e) improperly cites cases, and (f) does not provide respondent’s telephone number on the front cover.  The record shows that appellant provided respondent with two copies of her brief and appendix, which included supplemental paperwork. 

An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received into evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Although appellant’s brief is poorly organized and vague, we find it is mostly limited to the information contained in the record.  A deliberate failure to cite to the record may be a basis for declining to consider an issue or for dismissal of an appeal.  Brett v. Watts, 601 N.W.2d 199, 202 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).  However, the supreme court has set out four factors in consideration of a motion to dismiss for technical noncompliance with the Rules of Civil Appellate Procedure:

1.         Has the movant been prejudiced by the appellant’s            failure to comply with the rules?

 

2.         Has the appellant demonstrated justifiable cause for the failure to comply with the rules?

 

3.         Has the defect been cured and have the record and all      briefs been filed so that the merits can be evaluated?

 

4.         Is the underlying appeal meritorious?

 

Boom v. Boom, 361 N.W.2d 34, 36 (Minn. 1985).  Pro se litigants are generally held to the same standards as attorneys.  Liptak v. State, 340 N.W.2d 366, 367 (Minn. App. 1983).  And there is some leeway for both attorneys and pro se litigants who commit unintentional technical errors in briefs.  We do not find any specific prejudice to respondent by appellant’s failure to include a statement of the facts or to use the proper format or citations, because the parties have been litigating this issue since 1994 and virtually everything relied upon in the appeal was disclosed throughout the years of litigation.  Therefore, we decline to dismiss because of defects in appellant’s brief.

            Affirmed.