State v. Richards

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-98-1586

In Re the Marriage of:

Leland William Jacobs, petitioner,

Appellant,

vs.

Machell Annette Jacobs,

Respondent.

Filed May 11, 1999

Affirmed

Schumacher, Judge

Ramsey County District Court

File No. F0960820

Leland W. Jacobs, Post Office Box 4532, St. Paul, MN 55104 (pro se appellant)

Diane P. Sheehy, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Leland William Jacobs (father) challenges a custody award to respondent Machell Annette Jacobs (mother) arguing certain evidentiary rulings were an abuse of discretion and that certain findings are unsupported by the record. We affirm.

FACTS

After father petitioned to dissolve the parties' marriage via a Ramsey County Family Court Pilot Project, a custody study of the parties' minor children was ordered and a guardian ad litem was appointed. Also, the parties were directed to provide witness lists 30 days before trial but father did not do so. Ultimately, certain of father's witnesses were allowed to testify with various conditions. In April 1998, a referee awarded mother sole legal and physical custody of the children. Father appeals after denial of his post-trial motions.

D E C I S I O N

Custody awards are discretionary with the trial court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a custody determination unless "the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id.

In considering the issue of custody the trial court is not limited to any particular line of inquiry nor is it bound by the strict legal rules governing the introduction of evidence, and its orders and directions in that respect are not subject to the same legal tests usually applicable in the trial of other causes.

Molto v. Molto, 242 Minn. 112, 115, 64 N.W.2d 154, 157 (1954). To obtain relief, father must show both error and that the error prejudiced him. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993).

1. Father argues he was not allowed to present testimony from certain witnesses he hoped to call and that time constraints rendered him unable to locate witnesses. A trial court has discretion to exclude testimony if a party inexcusably delays disclosing a witness and the delay prejudices the other party. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Also, in family proceedings, a court may limit the witnesses a party may call, the scope of their testimony, and the time to present evidence. Minn. R. Gen. Prac. 303.03(d). Because father did not abide by the reasonable disclosure requirements imposed in this case, there was no abuse of discretion in the exclusion of the testimony in question.

Father argues the reports of the guardian ad litem and court services officer should not have been admitted because they were not based on observations of him with the children.

The rule with respect to custody evaluation reports is that, absent a waiver, an appellant in a custody case is entitled to a new hearing if it appears that the trial court based its custody decision in part upon such a report without first giving the parties an opportunity to cross-examine the author of the report or to otherwise meet or answer adverse facts therein.

Scheibe v. Scheibe, 308 Minn. 449, 450, 241 N.W.2d 100, 100 (1976) (citations omitted). Here, because father cross-examined the guardian ad litem and the court services officer at length, admission of their reports was not an abuse of discretion. See Timmons v. Timmons, 298 Minn. 523, 524, 213 N.W.2d 335, 336 (1973) (no abuse of discretion where investigator subject to cross-examination).

We reject father's claim that the testimony of his expert was improperly excluded. Woyak v. Konieske, 237 Minn. 213, 221, 54 N.W.2d 649, 653 (1952) (whether sufficient foundation is laid to qualify witness as expert is for the trial court). We also reject father's claim the referee improperly questioned the court services officer. See Minn. R. Evid. 614(b) (court may interrogate witnesses, whether called by itself or a party). Although father claims evidence attacking his character was improperly admitted, because it he who first put his character into evidence, we cannot say the admission of the evidence was an abuse of discretion. Also, because the record shows one day of the seven day trial consisted entirely of father's testimony, we cannot say father's ability to present his testimony was improperly limited.

2. Father challenges certain findings in the order awarding custody but does not do so with any particularity. Nor does he detail any prejudice from the allegedly defective findings. Assignment of error based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious. State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). After review of the record, we conclude the findings are adequately supported. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

3. Without citing any authority and relying on "common sense," father claims he is entitled to a "trial de novo" before a district court. See Minn. R. Civ. App. P. 128.02 (appellate brief to have argument containing citation to authorities for each issue); In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995) (failure to adequately brief issue waives issue), review denied (Minn. May 16, 1995). Because the legislature, as part of a pilot project, suspended the right to district court review of certain decisions by Ramsey County Family Court Referees, father's request for a "trial de novo" is without legal basis. 1996 Minn. Laws ch. 365.

Affirmed.