This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1347

 

In re the Marriage of:

 

Curtis D. Hansen, petitioner,

Respondent,

 

vs.

 

Dayna L. Hansen,

Appellant.

 

Filed March 13, 2007

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 27-FA-298545

 

Richard A. Stebbins, Stebbins & Hegranes, L.L.C., 1076 West 7th Street, Suite A, St. Paul, MN 55102 (for respondent)

 

Dayna L. Hansen, 10904 27th Avenue South, Burnsville, MN 55337 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant-mother challenges the district court’s dissolution judgment and decree, which, inter alia, awarded temporary sole legal custody and permanent sole physical custody of the parties’ child to respondent-father, arguing that the district court abused its discretion by (1) allowing extensions of the original custody evaluation and not ordering a second custody evaluation, (2) neglecting this case and allowing bias to influence the outcome, and (3) awarding custody of the child to respondent-father.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

            In May 2004, appellant Dayna Hansen married respondent Curtis Hansen.  The parties have a daughter, who was born in September 2004.  Shortly after the birth of their daughter, appellant moved to her mother’s home in northern Minnesota.  The parties reconciled in November 2004 but separated in February 2005, and respondent filed for dissolution.

Appellant relocated briefly to Massachusetts with the parties’ daughter and obtained an Abuse Prevention Order against respondent in a Massachusetts family court, which expired two weeks later.  In July 2005, the Hennepin County district court ordered a custody evaluation.  Appellant and the daughter moved back to Minnesota around August 2005, and the custody evaluation began in September 2005.  In December 2005, the district court granted an extension of the custody evaluation, which was submitted to the court in February 2006.  The district court then continued the trial until April 2006. 

At trial, both parties testified, together with family members and expert witnesses.  Diane Tharalson, the court-appointed custody evaluator, recommended that physical custody be granted to respondent based on her observations and conclusion that the child had adapted “quickly and easily to her deepening relationship” with respondent.  Dr. Joan Nelson, a court-appointed psychologist who interviewed both parties and administered an MMPI-2 psychological test to them, also recommended that the district court grant custody to respondent.  Dr. Jane McNaught, a psychologist appearing on appellant’s behalf, declined to make a custody recommendation but opined that the child had a strong bond with appellant.  Dr. McNaught also questioned Dr. Nelson’s interpretation of some of appellant’s psychological test results.

The district court considered this conflicting testimony “in the context of the other evidence in this case” and credited the testimony of Tharalson and Dr. Nelson over the testimony of Dr. McNaught.  The district court found that respondent “will be more likely to facilitate contact between [the child] and her mother and is the parent who is more likely to understand and appreciate the necessity for [the child’s] involvement with both of her parents.”  Thus, the court concluded that it was in the child’s best interests to award respondent temporary sole legal custody and permanent sole physical custody of the child.  This appeal followed.

D E C I S I O N

I.

Appellant argues that the district court abused its discretion by allowing an extension of the original custody evaluation and failing to order a second custody evaluation closer to the time of trial.  Custody evaluations are governed by Minn. Stat. § 518.167 (2006), which gives the district court discretion to order a custody evaluation in a contested custody proceeding.  Therefore, we review the decision whether to order a custody evaluation for an abuse of discretion.  Meyer v. Meyer, 375 N.W.2d 820, 826 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). 

Appellant argues that the district court abused its discretion by failing to properly investigate the reasons for initially extending the custody evaluation process.  Specifically, appellant contends that Tharalson requested the extensions in order to allow respondent to refurbish his home.  But there is nothing in the record to support this contention.  In addition, appellant did not raise this contention at the district court.  We consider only those issues argued and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant failed to raise this issue at the district court, she waived any right to appellate review.

But even if we did consider this issue, we conclude that the district court did not abuse its discretion.  The district court extended the evaluation period from December 2005 to February 2006 to allow respondent to reestablish a relationship with the child and to provide the custody evaluators with an opportunity to hold a joint-observation session with both parents.  The district court then continued the trial until April 2006 to ensure that both parties had adequate time to review the custody evaluation.  On this record, we see no abuse of discretion in extending the date for completion of the custody evaluation. 

Appellant next argues that the district court erred in failing to order a second custody evaluation.  She relies on an unpublished decision, Breitenfeldt v. Nickles-Breitenfeldt, C3-02-1569, 2003 WL 1908070 (Minn. App. April 22, 2003), for the proposition that the district court should have ordered a second evaluation.  But our unpublished decisions are not precedential.  Minn. Stat. § 480A.08, subd. 3(b) (2006).  Here, neither party requested a second custody evaluation or an updated evaluation at the district court.  On this record, we see no abuse of discretion.

II.

Appellant argues that the district court judge and the court-appointed evaluator exhibited unfair bias that deprived her of a fair trial.  Judicial bias may result in reversal if it arises from an extrajudicial source, In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986), or it amounts to pervasive bias that is “so extreme as to display [a] clear inability to render fair judgment.”  Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994).  A party may challenge a judge for bias by filing a notice to remove that judge within ten days after receiving notice of which judge will preside at the hearing.  Minn. R. Civ. P. 63.03. 

Appellant made no allegations of judicial bias at the district court, and, therefore, this claim is waived for purposes of appeal.  See Baskerville v. Baskerville, 246 Minn. 496, 501, 75 N.W.2d 762, 766 (1956) (“A litigant who, in the absence of fraud or other controlling circumstance, elects to go to trial without taking timely and appropriate action to disqualify a judge for bias waives his right to assert such bias.”).  But even if we consider appellant’s claims of bias, they lack merit.  Appellant first argues that the district court showed bias against her by “clos[ing] and lock[ing] the door for this Mother to ever regain or petition for joint/sole physical custody.”  But appellant is not precluded from attempting to modify the judgment at a later date.  Upon motion of a party, a district court may modify a custody order if it finds that a change has occurred in the circumstances of the child or the parties, and that modification is necessary to serve the best interests of the child.  Minn. Stat. § 518.18(d) (2006). 

Appellant argues that the district court improperly admitted portions of Tharalson’s testimony regarding statements made to her by appellant’s neighbors.  First, appellant argues that the custody evaluation violated Minn. Stat. § 518.167, subd. 3 (2006) by not disclosing the names and addresses of the neighbors she consulted.  The statute provides that the evaluator “shall maintain and, upon request, make available . . . the names and addresses of all persons whom the [evaluator] has consulted” in preparing the report.  Id.  But no such request was made by appellant, and, therefore, we see no violation of the statute.  Appellant also argues that the district court erred in overruling her foundation objection to Tharalson’s testimony.  Respondent concedes that the testimony was hearsay but argues that its admission was not prejudicial error.  We agree.  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (quotation omitted).  Here, Tharalson was subject to cross-examination, and appellant was not precluded from calling the neighbors for impeachment purposes.  Thus, appellant was not prejudiced by the admission of this testimony.

Appellant also argues that the court-appointed evaluators, Nelson and Tharalson, were biased against her.  Appellant did not raise this contention at the district court, and other than their recommendations, appellant fails to point to anything in the record to show bias on the part of Nelson and Tharalson.  In addition, both experts testified at trial, and any potential bias could have been exposed during cross-examination.  Essentially, appellant’s argument challenges the credibility of the experts.  But on issues of credibility, we defer to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).

Finally, appellant contends that the district court did not “put forth the necessary amount of time” to evaluate her case, thus depriving her of a fair trial.  But the district court conducted a two-day trial, and it gave each party the opportunity to submit additional written arguments at the conclusion of that trial.  We see nothing in the record to indicate that the district court failed to give this case due time or consideration.

III.

            Appellant argues that the district court abused its discretion by awarding respondent custody of the child.  A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  The controlling principle in all child custody determinations is the best interests of the child.  Minn. Stat. § 518.17, subd. 1 (2006); Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985).  But the law “leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interests considerations.”  Vangsness, 607 N.W.2d at 477. 

Our review of the district court’s custody determination, therefore, is limited to whether the district court abused its discretion by making factual findings that are unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  When reviewing a custody determination, an appellate court views the record in the light most favorable to the district court’s findings.  Vangsness, 607 N.W.2d at 472.  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula, 374 N.W.2d at 710.  A finding is “clearly erroneous” if this court is left with the definite and firm conviction that a mistake has been made.  Vangsness, 607 N.W.2d at 472.

            Appellant initially argues that the district court failed to make detailed findings on all of the 13 best-interest factors used in making its custody determination.  We disagree.  The record reflects that the district court carefully considered and addressed all of the 13 best-interest factors. 

Appellant next argues that the district court failed to properly weigh the fact that she was the child’s primary caretaker.  But “the fact that one parent may be the primary caretaker does not necessarily control who gets custody.  All relevant factors must be weighed.”  Vangsness, 607 N.W.2d at 477 (quotation omitted).  Although the district court acknowledged that appellant was the primary caretaker, it also found that appellant had repeatedly prevented the child from interacting with respondent, which weighed against appellant.  The record supports this finding.

Appellant further argues that the district court erred by placing undue weight on testimony of the court-appointed custody experts over the opinion of her proffered expert.  A district court has discretion to accept or reject custody recommendations.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, the district court heard conflicting expert testimony regarding custody, it “carefully considered the testimony of the Family Court Services Evaluator and Psychologist together, as well as the testimony of Respondent’s proffered expert,” and it concluded that the court-appointed experts testified credibly and reliably.  We defer to the district court’s credibility determinations.  Vangsness, 607 N.W.2d at 472. 

Appellant also argues that the district court made inaccurate findings by overstating the amount of time appellant was in Massachusetts, overstating the number of times appellant moved, and finding that she moved to northern Minnesota when the child was just two-days old.  The record is not clear as to exactly how long appellant and the child were in Massachusetts.  Regarding the history of appellant’s moves, the district court concluded, “Neither party has a present plan to move.  Both parties have the capacity to provide [the child] with a permanent family unit.”  Thus, the history of moving did not affect the district court’s decision with regard to the child’s living situation.  Finally, appellant testified that she moved the child to northern Minnesota within a week of her birth. 

On this record, the district court examined the 13 best-interest factors in detail, and it carefully balanced each party’s interests.  Therefore, we conclude that the district court did not abuse its discretion.

            Affirmed.