Jerry M. Lee, petitioner, Appellant, vs. Aurielle D. Screws, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-2243

Jerry M. Lee, petitioner,

Appellant,

vs.

Aurielle D. Screws,

Respondent.

Filed September 2, 2003

Affirmed

Lansing, Judge

Hennepin County District Court

File No. MF272231, PA 42639

Darrell E. Graham, Gray Graham LLP, P.O. Box 35008, St. Louis, MO 63135 (for appellant)

Fred J. Ojile, Messinger & Ojile, PLLP, on Behalf of Volunteer Lawyer's Network, 950 Flour Exchange Building, Minneapolis, MN  55415 (for respondent)

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court issued an order placing sole physical custody of Aurielle Screws and Jerry Lee's younger child with Screws and providing Lee supervised parenting time.  Lee challenges both the custody and parenting-time determinations.  Because we conclude that the district court did not misapply the law, abuse its discretion, or make findings unsupported by the record, we affirm.

F A C T S

            Jerry Lee and Aurielle Screws are the parents of two children, the first born in December 2000 and the second born in November 2001.  In October 2001 the district court issued an order placing sole legal and physical custody of their older son with Lee and setting conditions for Screws's exercise of parenting time.  A year later, the district court placed sole legal and physical custody of the younger child with Screws, ordered that each party could exercise supervised parenting time with the child in the other parent's custody, and required the parent exercising parenting time to bring the child in his or her custody to the parenting time.

Lee appeals, arguing (1) the order violates the doctrine of collateral estoppel because it alters aspects of the prior order providing for his sole legal and physical custody of the parties' older child, (2) the court abused its discretion in not ordering joint legal and physical custody of the younger child, (3) his parenting time is inadequate and should not be supervised, and (4) the district court denied him a fair hearing.

D E C I S I O N

I

            Lee argues that the district court's order that altered Screws's parenting time with the older child violated the doctrine of collateral estoppel.  We reject this argument for three reasons.

First, at the hearing generating the second order, Lee acknowledged that Screws's parenting time with the older child was at issue.  Therefore, her parenting time was, at minimum, litigated by consent.  See Minn. R Civ. P. 15.02 (addressing litigation of issues by consent).  Second, application of collateral estoppel requires that the same issue have been finally determined in a prior lawsuit.  Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).  The second order, which addressed custody of the younger child, incorporates the file numbers for both children's custody files, which means that this is a continuous proceeding and the separate suits necessary for application of collateral estoppel do not exist.

            Third, even though a lack of separate proceedings means that collateral estoppel does not apply in its technical sense, the underlying principle that an adjudication on the merits of an issue should not be relitigated does apply.  Loo v. Loo, 520 N.W.2d 740, 743-44 & n.1 (Minn. 1994).  But in this case, the second order did not result in a relitigation of the same issue.  Parenting time is set and modified based on the child's best interests.  Minn. Stat. § 518.175, subds. 1, 5 (2002).  These interests include a child's relationship with siblings.  Minn. Stat. § 518.17, subd. 1(5) (2002).  Because the parties' younger child had not been born when the district court issued the first order, the issues and statutorily mandated considerations were not the same in the first and second orders.

II

Lee argues that the district court should have ordered joint legal and joint physical custody of Lee and Screws's second child.  A district court's custody determination will not be altered unless the district court abused its broad discretion by making findings unsupported by the evidence or by improperly applying the law.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  On appeal, findings of fact are not set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  When determining whether findings are clearly erroneous, we view the record in the light most favorable to the district court's findings.  N.A.K., 649 N.W.2d at 174.

Joint physical custody is appropriate only in "exceptional cases" in which the parents can cooperate in raising a child.  Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993) (quoting Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1986)); see Minn. Stat. § 518.17, subd. 2(a) (2002) (requiring consideration of parties' ability to cooperate when deciding whether to order joint custody).  Parents' inability to cooperate in coparenting a child precludes an order for joint legal custody.  Wopata, 498 N.W.2d at 482. 

The district court found that the parents cannot cooperate in rearing their children.  Lee challenges this finding, but the uncontradicted facts show that, at the time of the hearing, Screws had an order for protection against Lee which included a no-contact provision; Lee admitted violating this order; criminal charges were pending against Lee for this violation of the order; Lee and Screws had been in court for adversarial reasons four times in the six months preceding the hearing; Screws testified that she had previously been hospitalized as a result of physical abuse by Lee; and after Lee filed this appeal, Screws obtained an extension of the order for protection, including the no-contact provision.  This record supports the finding that the parties cannot cooperate and justifies the district court's refusal to order that the parents have joint custody of the younger child.

Lee makes three related arguments that are equally unsupported by the record.  He argues that the court's failure to order joint custody essentially terminated his parental rights.  This argument has no merit.  The district court changed the younger child's name to reflect Lee's paternity and provided Lee parenting time with younger child.  See Minn. Stat. § 260C.317, subd. 1 (2002) (stating termination of parental rights "sever[s]" parent's rights to "visitation" with child).

            Lee argues that the district court did not adequately explain why he could have sole physical and legal custody of one child and not be competent to have joint custody of the other.  The district court's ruling, however, was not based on Lee's parental abilities, but on the parties' inability to cooperate and the finding that Lee is a "stranger" to the younger child.  These findings, combined with the extension of the order for protection, fully support the district court's decision not to order joint custody of the younger child.  Lee also attempts to challenge the guardian ad litem's report on several grounds.  But Lee did not challenge the report in district court; thus we do not address these arguments.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

III

            A district court has "broad discretion" to resolve 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).  Lee contends the district court did not allow sufficient parenting time for him to develop a relationship with his younger child.  On this record, and in light of the finding that Lee and the younger child are strangers, limiting the amount of Lee's parenting time is reasonable.  Supervision of Lee's parenting time is appropriate if unsupervised parenting time is "likely" to endanger the child's health or emotional development.  Minn. Stat. § 518.175, subd. 1.  If an order for protection is in effect to protect one parent from the other, the district court must consider the order for protection when addressing parenting time.  Minn. Stat. § 518.175, subd. 1a (2002).

An order for protection was, and still is, in effect.  The district court noted Screws's concern that Lee would use the younger child to attempt to control Screws.  Testimony of the guardian ad litem also established that the parties, "[p]articularly [Lee,]" often did not abide by the parenting-time limitations of prior orders.

Supervised parenting time will limit the opportunity for Lee to attempt to control Screws's relationship with the child.  Additionally, as the guardian ad litem noted, if Lee's parenting time progresses successfully, he may move to modify his parenting time.  Minn. Stat. § 518.175, subd. 5. 

IV

            Lee alleges that he was denied a fair hearing because the district court excluded certain witnesses and other evidence intended to test Screws's veracity.  A full hearing is one in which the litigants are allowed to present and cross-examine witnesses, produce documents, and to have a case decided on its merits.  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995) (citing In re Enger's Will, 225 Minn. 229, 237-38, 30 N.W.2d 694, 700 (1948)).  Whether to admit or exclude evidence is discretionary with the district court and its decision will not be altered on appeal unless the decision is an abuse of discretion or is based on an erroneous view of the law.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  Also, "[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."  Id.  (citation omitted).

            Lee alleges that the witnesses he wanted to present were "discussed extensively" at a deposition.  That deposition, however, was not made part of the record and was not the subject of an offer of proof.  Also, on appeal, Lee does not specifically identify what the witnesses in question would have said if they had been allowed to testify.  Thus, Lee has failed to show that he was prejudiced by the exclusion of the witnesses.  The other evidence Lee wanted to present was an audiotape of phone calls allegedly made by Screws to Lee.  The district court refused to admit the tape because, despite Screws's discovery requests for documents, the tape was not produced until trial.  This decision is consistent with case law.  See Haaland v. Haaland, 392 N.W.2d 268, 273 (Minn. App. 1986) (failure to exercise diligence in producing evidence supported refusal to consider it "newly discovered").

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.