Nicollet County District Court

File No. F2-95-288

LaMar T. Piper, Piper Law Firm, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for appellant)

Todd W. Westphal, MacKenzie & Gustafson, Ltd., 424 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 56082-0360 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.

Appellant Victoria Salas Muellerleile challenges the district court's application of the best-interests analysis, and the denial of her requests for access to guardian ad litem files and the mental health records of respondent Jon Patrick Muellerleile. We affirm.

Statutory interpretation is a legal question. Poehls v. Poehls, 502 N.W.2d 217, 218 (Minn. App. 1993). The provision appellant cites does not identify the abusing or abused persons. Minn. Stat. § 518.17, subd. 1(a)(13). Here, there is no finding that respondent abused the child. To read the provision as making a finding of abuse a blanket prohibition on consideration of a potential custodian's fostering of a child's relationship with a non-custodial parent, would, in cases of inter-parent abuse not impacting the child, cause the provision to conflict with Minn. Stat. § 518.17, subd. 1(b) (1996), which precludes consideration of a proposed custodian's conduct not impacting the parent-child relationship. Further, a blanket prohibition would, when the abuser is more likely to foster the child's relationship with the other parent than is an abused parent, conflict with the definition of "best interests" as "all relevant factors including" (and hence not necessarily limited to) those listed in the statute. Minn. Stat. § 518.17, subd. 1(a) (emphasis added). Statutes are to be construed to avoid conflicts with other statutes. See Minn. Stat. § 645.16 (1996) (laws are to be construed to give effect to all provisions). The district court did not err by considering appellant's limited desire to foster the father-child relationship.

2. Review of custody awards is limited to whether the district court abused its discretion by making findings unsupported by the evidence or improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). On appeal, findings are not set aside unless clearly erroneous and the record is viewed in the light most favorable to the findings. Minn. R. Civ. P. 52.01; Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993). Here, the district court found (a) the experts believe respondent's mental condition "is primarily related to the destruction of this family" and that "[respondent] is susceptible to successful treatment"; (b) a psychologist stated respondent's violent outbursts were "not characteristic of this man"; (c) respondent "has insight into his situation which is obviously the first giant step towards successful treatment"; (d) appellant "has absolutely no insight in regard to her condition"; (e) "it is apparent [appellant] is troubled by unfortunate personality traits, if not a disorder"; (f) appellant has "adamantly resisted" therapy and is "unlikely" to seek it voluntarily; (g) it is "clear" appellant "significantly" contributed to the child's psychological distress by disparaging respondent in front of the child; (h) the guardian ad litem doubts appellant can provide the child with long-term stability; and (i) allowing the child to be exclusively controlled by appellant may be psychologically detrimental to the child. Viewing the record in the light most favorable to these findings, they are not clearly erroneous and support awarding custody to respondent.

3. Whether to grant a discovery request is discretionary with the district court. Kahn v. Tronnier, 547 N.W.2d 425, 431 (Minn. App. 1996), review denied (Minn. July 10, 1996). While discovery may extend to all matters relevant to a pending action, the district court has broad discretion in determining what is discoverable. Hoyland v. Kelly, 379 N.W.2d 150, 152 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).

Appellant claims Minn. Stat. § 518.167 (1996) entitles her to access to the guardian ad litem files. Section 518.167 allows access to files generated in a custody evaluation ordered under Minn. Stat. § 518.167, subd. 1. Minn. Stat. § 518.167, subd. 3. Minn. Stat. § 518.167, subd. 1, however, addresses custody evaluations "by the county welfare agency or [the] department of court services." Because the provision does not mention guardians ad litem and because guardians ad litem are appointed under a different statute, the disclosure requirement of Minn. Stat. § 518.167 need not apply to guardians ad litem. Indeed, guardians ad litem are to keep case-related information confidential except "to promote cooperative solutions that are in the best interests of the child." Minn. Stat. § 518.165, subd. 2a(3) (1996). Releasing information for litigation purposes does not "promote" a "cooperative solution" to a custody dispute.

Appellant also claims Minn. Stat. § 13.84, subd. 5(b) (1996), entitles her to access to the guardian ad litem files. This provision of the Government Data Practices Act refers to certain "[c]ourt services data," including that generated in a custody study. In relevant part, however, "court services data" is defined as created "by a court services department." Minn. Stat. § 13.84, subd. 1 (1996). As noted above, guardians ad litem are not appointed under the statute allowing custody studies by the department of court services. Thus, guardian ad litem files are not "court services data."

4. Although unclear, appellant seems to claim (a) all relevant, unprivileged evidence is discoverable under Minn. R. Civ. P. 26.02(a); (b) under Minn. R. Civ. P. 35.03, medical privileges are waived if a party puts their mental health in issue; and (c) because respondent's mental health was at issue here, she was entitled to discovery of files generated by the psychologist that respondent retained but who did not testify at trial.

Minn. R. Civ. P. 26.02(a) allows discovery of any matter relevant to a pending action but discovery from experts retained in anticipation of litigation may be obtained "only" as provided in rule 26.02(d). Rule 26.02(d)(2) entitles a party to discovery from an expert retained for trial but who is not expected to testify "only as provided in Rule 35.02 or upon a showing of exceptional circumstances."

Rule 35.02 allows a party to obtain discovery of a court-ordered, adverse examination of the party seeking the discovery. Minn. R. Civ. P. 35.01 & 35.02; Hill v. Hietala, 268 Minn. 296, 298, 128 N.W.2d 745, 747 (1964). The information appellant seeks neither concerns herself nor is the result of an adverse, court-ordered examination. Also, the district court found appellant did not show the "extraordinary need" required for discovery under the second prong of rule 26.02(d)(2). Here, appellant neither challenges this finding nor alleges an extraordinary need. Appellant has not satisfied either prong of rule 26.02(d)(2).

Affirmed.