In re the Marriage of: Kim M. Pirila, petitioner, Respondent, vs. Marvin D. Pirila, Appellant.

This opinion will be unpublished and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

C5-03-255

 

In re the Marriage of:

Kim M. Pirila, petitioner,

Respondent,

 

vs.

 

Marvin D. Pirila,

Appellant.

 

Filed September 5, 2003

Affirmed Willis, Judge

 

Carlton County District Court

File No. F200997

 

 

Kim M. Pirila, 924 Riva Ridge Drive, Cloquet, MN  55720 (pro se respondent)

 

Marvin D. Pirila, 107 15th Street, Cloquet, MN  55720-1909 (pro se appellant)

 

            Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            On appeal from an amended dissolution judgment, appellant argues, pro se, that (1) the district court's custody determination does not reflect the best interests of the children, (2) the court abused its discretion in evidentiary matters, (3) Minnesota's presumptions relating to custody are unconstitutional, (4) the "tender-years doctrine" is unconstitutional, (5) the district court abused its discretion by accepting respondent's letter brief, and (6) the district court was biased against appellant.  Because the district court neither erred nor abused its discretion, we affirm.

FACTS

            In December 2001, appellant Marvin D. Pirila and respondent Kim M. Pirila agreed to end their 12-year marriage, and the district court approved a partial stipulation that resolved property issues.  In April 2002, a trial resolved the remaining issues: the court granted the parties joint legal custody of their two children, awarded respondent sole physical custody of the children, and ordered appellant to pay $900 per month in child support. 

In December 2002, the district court denied appellant's motion to amend the court's finding that the parties should share legal custody but that respondent should have sole physical custody.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that because the district court failed to make the detailed findings mandated by Minn. Stat. § 518.17 (2002), the court's award of sole physical custody of the children to respondent must be reversed.

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); see Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (stating that appellate review of custody determination is limited to "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law").  Under Minnesota law, a district court is required to base its custody determination on the best interests of the children.  Minn. Stat. § 518.17, subd. 3(a)(3).  The 13 statutory factors for determining a child's best interests are set forth in Minn. Stat. § 518.17, subd. 1(a).  The district court made extensive findings, supported by the record, on each of these factors.

Here, because appellant sought joint physical custody of the children, Minn. Stat. § 518.17, subd. 2, requires that the court consider four additional factors:  (1) the parents' ability to cooperate with each other in rearing the children, (2) the parents' methods for resolving disputes regarding major decisions concerning the children, (3) if it would be detrimental to the children if one parent were to have sole authority over the children's upbringing, and (4) whether domestic abuse has occurred between the parents.  Although the district court did not make explicit findings referring to these four factors, the court's order shows that it considered the factors as demonstrated by the court's findings that considered issues relating to the parents' ability to cooperate, the parents' ability to resolve disputes, the parents' involvement in the children's lives, and incidents of domestic abuse.  See Schultz v. Schultz, 358 N.W.2d 136, 138-39 (Minn. App. 1984) (concluding that district court did not abuse its discretion by failing to make detailed findings regarding factors listed in Minn. Stat. § 518.17, subd. 2, when court's order shows that it considered those factors).

Because the record shows that the district court considered the relevant statutory factors, the court did not abuse its discretion by determining that it is in the best interests of the children for respondent to have sole physical custody.

II.

            Appellant contends that the district court abused its discretion by admitting into evidence (1) a report from the guardian ad litem, (2) hearsay testimony, (3) respondent's affidavit in support of her motion for temporary relief, and (4) evidence regarding an order for protection.

            We will not reverse a district court's evidentiary rulings unless the court clearly abuses its discretion and prejudices the adverse party.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  Generally, to preserve issues for appeal, including evidentiary rulings, counsel must make a timely objection and move for a new trial.  In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990); see also Minn. R. Evid. 103(a)(1) (stating general requirement of timely objection or motion to strike to preserve evidentiary issue for review).  Failure to preserve an issue precludes review of that issue on appeal.  Gonzalez, 456 N.W.2dat 727; see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate court will address only issues presented to and considered by district court in deciding matter).  Generally, we hold pro se litigants to the same standards as attorneys.  See also Davis v. Danielson, 558 N.W.2d 286, 287 (Minn. App. 1997), review denied (Minn. Mar. 18, 1997).

A.            The guardian ad litem's report

Appellant argues that the district court abused its discretion by admitting the guardian ad litem's written report into evidence over appellant's objection because (1) the guardian ad litem failed to submit the report at least ten days before the hearing, in violation of Minn. R. Gen. Pract. 108.01, and (2) the report does not include conclusions and recommendations about the children's best interests, as required by Minn. Stat.         § 518.165, subd. 2a (2002).  The district court received the report into evidence, stating that it would not give the report "much weight."

            Although the guardian ad litem's report only recommended that an expediter be used for visitation and did not address the issue of custody, appellant has not shown that the district court abused its discretion by accepting the report.  See Lines v. Ryan, 272 N.W.2d 896, 902 (Minn. 1978) (stating that district court's evidentiary rulings will not be reversed absent a showing that the court abused its discretion).  In addition, appellant fails to show that he was prejudiced by the late submission or by the limited content of the guardian ad litem's report.  The district court obviously did not rely on the report when it issued its custody order because the report did not make a custody recommendation.  See Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 917 (Minn. App. 2001) (requiring a showing of prejudicial error to grant new trial based on improper evidentiary ruling).

B.            Respondent's affidavit

Appellant argues that respondent's affidavit in support of her motion for temporary relief should not have been "admitted into evidence," alleging various deficiencies.  But because the affidavit was in fact not received into evidence at trial by the district court and was not relied on by the court in its order, there is no basis for appellant's argument.

C.            Other evidence

Appellant also contends that the district court abused its discretion by admitting hearsay evidence in the form of a questionnaire from a social-services provider reporting that appellant had made unsolicited sexual advances to respondent after the parties separated and that the district court abused its discretion by admitting testimony regarding an order for protection.  But appellant objected to neither the document nor the testimony being admitted into evidence, therefore he failed to preserve those issues for appeal.  See Gonzalez, 456 N.W.2d at 727 (stating that to preserve evidentiary issue for appeal a party must make timely objection and move for new trial).

III.

            Appellant argues that the presumptions in Minnesota law relating to custody are unconstitutional.  But this court addresses only questions that were presented to and considered by the district court.  Thiele, 425 N.W.2d at 582.  No challenge to the constitutionality of either statutory or common-law presumptions in custody determinations was made by appellant or addressed by the district court.  In addition, appellant did not, as is required by Minn. R. Civ. App. P. 144, notify the attorney general of an appellate challenge to the constitutionality of a Minnesota statute.  Therefore, this issue is not properly before us, and we do not address it.

IV.

            Appellant also alleges that the "tender-years doctrine" is unconstitutional because it biases custody decisions in favor of mothers, thereby violating the Fourteenth Amendment to the United States Constitution.  Because appellant did not object to the district court's alleged reliance on the tender-years doctrine, this issue also is not properly before us.  We note, however, that Minnesota courts at one time applied the doctrine, which presumed that in dissolution proceedings it was in young children's best interests to be in the custody of their mothers.  See Maxfield v. Maxfield, 452 N.W.2d 219, 224 (Minn. 1990) (Yetka, J., dissenting).  But under current Minnesota law, when making custody determinations courts may not "prefer one parent over the other solely on the basis of the sex of the parent."  Minn. Stat. § 518.17, subd. 3(3) (2002).  Here, the district court did not apply the tender-years doctrine, and there is no basis for appellant's claim.

V.

            At the close of trial the district court stated, "I understand that the parties are agreed that otherwise any final written submissions, proposed findings would be in by the close of business here at 4:00 o'clock May 31st."  Appellant submitted to the court his proposed findings, and on May 31 respondent filed her proposed findings with an attached letter brief discussing legal and factual issues associated with the case.  The letter stated in part that, "This letter will also serve as [respondent's] closing argument."  On June 6, appellant wrote a letter to the court objecting to respondent's letter brief and requesting that it be stricken from the record or that appellant be given the opportunity to provide his own closing argument.  The district court did not respond to appellant's objection.  Because appellant had an equal opportunity to provide the court with "any final written submissions" before the May 31, 2002 deadline and chose not to do so, this issue also does not provide appellant with a basis for relief.

VI.

Appellant argues finally that the district court judge engaged in "prejudicial conduct" by discriminating against him because of his sex by showing favoritism toward respondent.  Our review of the record shows no evidence of bias on the part of the district court.

            Affirmed.

           

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