This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Dee Marie Duckwall,
n/k/a Dee Marie Brust, petitioner,
Adam Andrew Duckwall,
Filed April 6, 2010
Affirmed; motion denied
Anoka County District Court
File No. 02-F5-04-007552
Douglas G. Sauter, William D. Siegel, Barna, Guzy & Steffen, Ltd., Minneapolis,
Minnesota (for respondent)
Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, St. Paul, Minnesota (for
Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
Appellant-father Adam Andrew Duckwall challenges the district court order
denying his motion to modify the restrictions on his parenting time, arguing that (1) the
district court’s finding that he failed to complete psychosexual therapy is without support
in the record; (2) the district court violated the Code of Judicial Conduct; (3) the district
court violated the prohibition against ex parte communication and improperly appointed
its own expert witness; (4) the district court failed to make the findings necessary to
reject the recommendations of appellant’s therapist and the guardian ad litem; and (5) the
district court erred by failing to conduct an evidentiary hearing or undertake a bestinterests analysis. We affirm but deny respondent’s motion to strike appellant’s reply
Appellant filed a motion requesting that the district court modify his parentingtime schedule. The district court denied the motion, finding that appellant had not
complied with its August 2007 order, which appellant did not appeal, that unambiguously
required appellant to successfully complete psychosexual therapy. Appellant argues that
the district court’s finding that he failed to complete the psychosexual therapy is without
support in the record. We disagree.
Minn. Stat. § 518.175, subd. 5 (2008), governs modification of parenting-time
schedules and mandates that modification be granted only if it would serve the best
interests of the parties’ children. The district court has broad discretion in determining
parenting-time issues and will not be reversed absent an abuse of that discretion. Olson
v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A district court’s findings of fact, on
which a parenting-time decision is based, will be upheld unless they are clearly
erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978). Appellate courts
review the record in the light most favorable to the district court’s decision. Vangsness v.
Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
When there is conflicting
evidence, appellate courts defer to district courts’ credibility determinations.
Conflicts in evidence presented in affidavits are to be resolved by district courts. Straus
v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959).
Here, the district court viewed affidavits from two clinical psychologists, Dr.
Michael Shea, who was hired by appellant, and Dr. Harlan Gilbertson, who was hired by
respondent-mother. Dr. Shea stated in his affidavit that (1) he was to “provide [appellant]
with any needed treatment and evaluation with regard to the expectations and order of the
Court”; (2) he “reviewed the specific details of the case including [appellant’s] current
psychological status particularly with regard to his psychosexual development and
current adjustment . . .”; and (3) he “provided the full evaluation and treatment to
[appellant] which was needed and warranted.” But Dr. Shea never stated that appellant
completed psychosexual therapy.
Dr. Gilbertson’s affidavit stated that he reviewed Dr. Shea’s reports and “found no
evidence supporting completion of any psychosexual therapy.” Dr. Gilbertson found that
Dr. Shea’s assessment “lack[ed] any extensive exploration or discussion of the
antecedents of his sexual behavior. . . . Without such knowledge, treatment interventions
cannot be planned accordingly to address any underlying cognitive distortions.”
The district court considered Dr. Shea’s affidavit and reports, and determined,
based on all the evidence, that appellant had “not in fact completed psychosexual
therapy” as required by the district court’s August 2007 order. From the entirety of the
record, and viewing the evidence in the light most favorable to the district court’s
determination, we conclude that this finding was not clearly erroneous. Further, under
Vangsness and Straus, the district court was charged with resolving the conflicting
evidence presented by the affidavits of Drs. Shea and Gilbertson, and this court gives
great deference to the district court’s resolution of such conflicts. Thus, the district court
did not clearly err in finding that appellant did not complete the court-ordered
In his brief, appellant accuses the district court of violating various canons of the
Code of Judicial Conduct. But the court of appeals does not have jurisdiction over
matters involving the Code of Judicial Conduct or the ethical duties of judges. Matters of
judicial discipline are governed by the Board on Judicial Standards. See Rules of Board
on Judicial Standards, Rule 2(b) (“The board shall have jurisdiction over allegations of
misconduct . . . for all judges.”); see also Minn. Stat. § 480A.06 (2008) (laying out the
jurisdiction of the court of appeals, which does not include judicial-discipline
proceedings). Thus, appellant’s allegations are not properly before us.
Appellant claims that the district court violated the prohibition against ex parte
communication when it contacted Dr. Scott Fischer and appointed him to provide a
psychosexual evaluation of appellant. We disagree.
This court has held that an appellant waives his right to challenge ex parte
communication with a nonparty when the appellant fails to object at the time of trial to
the outside investigation by the district court.
Koes v. Advanced Design, Inc., 636
N.W.2d 352, 363 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).
because appellant did not object to the district court’s introduction of Dr. Fischer, this
issue is waived. Furthermore, to succeed on a claim of reversible error for ex parte
violations, appellant must demonstrate that there was an ex parte communication, the
communication constituted error, and the error was prejudicial. Id. Appellant has not
established that contact between the district court and Dr. Fischer resulted in prejudicial
Appellant also claims that the district court inappropriately appointed Dr. Fischer
to be its own expert witness because Minnesota Rule of Evidence 706(a) requires that the
district court permit input from the parties as to the necessity of such an expert. We
disagree. Although rule 706(a) allows for input from the parties, it does not require that
the judge seek it, and allows the judge to appoint experts of its own selection. See Minn.
R. Evid. 706(a).
Appellant contends that the district court failed to make the findings of fact
necessary to reject the guardian ad litem’s and therapist’s recommendations that the
district court should modify his parenting-time restrictions. We disagree.
Appellant cites cases that provide that although the district court can reject
recommendations of a guardian ad litem, the court must either express its reasons for
rejecting the recommendations or provide detailed findings examining the record. See
Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28,
1994); see also Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991) (stating that
the district court has discretion not to follow custody recommendations, but that it must
explain why or provide detailed findings). But those cases involved custody proceedings,
not motions to modify parenting-time schedules, as is at issue here.
Moreover, when the district court found that appellant “has not in fact completed
psychosexual therapy” it implicitly rejected the guardian ad litem’s recommendation; its
reason for doing so was that appellant failed to comply with its previous order. See
Rogge, 509 N.W.2d at 166 (providing that a district court must explain its reasons for
rejecting a guardian ad litem’s recommendations).
Appellant also contends that the district court had an obligation to consider Dr.
Shea’s observations that continuing to restrict appellant’s parenting time with his
daughter is detrimental to their relationship. But the record indicates that the district
court thoroughly considered Dr. Shea’s affidavit and reports, and concluded that
appellant had not successfully completed psychosexual therapy, as the district court had
required in its August 2007 order. Thus, it was not an abuse of discretion for the district
court to reject Dr. Shea’s recommendations.
Appellant argues that the district court erred when it failed to conduct an
evidentiary hearing or undertake a best-interests analysis before continuing the restriction
on his parenting time. We disagree.
First, appellant did not request an evidentiary hearing. The moving party has the
burden to do so. See Minn. R. Gen. Pract. 3.03(d) (providing that, generally, motions in
family cases are to be resolved without an evidentiary hearing); Geske v. Marcolina, 624
N.W.2d 813, 818 (Minn. App. 2001) (citing cases providing that the moving party has the
burden in family law cases).
Further, a prerequisite to modifying parenting-time
schedules is changed circumstances. Matson v. Matson, 638 N.W.2d 462, 468 (Minn.
App. 2002); see also Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001)
(requiring an evidentiary hearing only when a party makes a prima facie case for a
change in parenting-time schedule), review denied (Minn. Oct. 24, 2001).
Here, the district court concluded that appellant had not complied with the court’s
requirement that he successfully complete psychosexual therapy before his parentingtime restrictions would be lifted. Thus, appellant failed to prove changed circumstances,
and failed to make a prima facie case to support modification. Therefore, the district
court was not required to conduct an evidentiary hearing or engage in further bestinterests analysis.
Respondent moved this court to strike appellant’s reply brief. Because appellant’s
reply brief does not raise new issues, we deny this motion. See Minn. R. Civ. App. P.
128.02, subd. 4 (confining reply brief to new matters raised in respondent’s brief).
Affirmed; motion denied.